State v. Sanchez

106 Arizona Cases Digest 15

537 P.3d 794

The STATE of Arizona, Appellee,

v.Andres SANCHEZ, Appellant.

No. 2 CA-CR 2022-0056

Court of Appeals of Arizona, Division 2.

Filed September 29, 2023

Kristin K. Mayes, Arizona Attorney General, Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, By Karen Moody, Assistant Attorney General, Tucson, Counsel for Appellee

Megan Page, Pima County Public Defender, By Ian M. McCloskey, Assistant Public Defender, Tucson, Counsel for Appellant

Presiding Judge Brearcliffe authored the opinion of the Court, in which Judge Kelly concurred and Judge Eckerstrom concurred in part and dissented in part.

BREARCLIFFE, Presiding Judge:

¶1 Appellant Andres Sanchez appeals his conviction and sentence for aggravated domestic violence. Sanchez asserts the trial court erred in admitting certain video evidence and denying his motion for new trial. For the following reasons, we affirm.

Factual and Procedural Background

¶2 "We view the facts in the light most favorable to upholding the conviction." State v. Griffin , 250 Ariz. 651, ¶ 2, 483 P.3d 273 (App. 2021). Sanchez and D.L. lived together in early 2020 in Tucson. In February 2020, D.L. and Sanchez argued at their apartment and, eventually, D.L. left on foot to pick up her children from school. As D.L. was walking to the school, Sanchez "came up behind" her, startling her. D.L.’s phone started ringing, and Sanchez "snatched the phone from [her] hand and he threw it [o]n the ground," breaking it. Sanchez then began pushing D.L., pulling her hair, and then hit her on the back of the head. Sanchez told D.L. if she "call[ed] the cops on him that he would kill [her]." Eventually, D.L. was able to escape and run to the school.

¶3 A driver who saw the fight called 9-1-1. A police officer went to the school looking for D.L. He found her in the school office "crying" and "frightened" and took her statement. Sanchez was arrested and charged with aggravated domestic violence "by disturbing [D.L.’s] peace."

¶4 At trial, the state notified the trial court of its intention to present body camera footage from the officer taken while interviewing D.L. at the school. The state explained the video showed "her demeanor, how upset [D.L.] was." In the video, D.L. told the officer what had happened, "why she's scared of [Sanchez], why she's upset," and the video ends with the officer telling her "she doesn't have to go back home." Sanchez objected to the video, asserting that the officer had arrived "some time later" and that D.L.’s demeanor when he arrived was not an accurate representation of the effect Sanchez's actions had on her. He argued there was nothing in the video that could not be explained to the jury through testimony and claimed the video was "more prejudicial than it [was] probative."

¶5 After confirming with the state that the video had been taken within thirty minutes of the incident and that Sanchez intended to attack D.L.’s credibility as to her emotional state, the trial court ruled it was admissible and its probative value was not outweighed by the danger of unfair prejudice. The court explained that, if Sanchez questioned D.L.’s credibility as to whether she had been disturbed, the video would be relevant to respond to such an argument. The video was ultimately shown to the jury over Sanchez's renewed objection.

¶6 During deliberations, the jurors asked the trial court why the cause number on one exhibit did not match the cause number before them. The court consulted with the parties and, at Sanchez's request, drafted an answer for the jurors explaining that it was "an error." Meanwhile, the bailiff entered the courtroom, stating, "It looks like they have a verdict." The court told the bailiff, "Well, take that back," presumably referring to the drafted answer to the jury question. After a recess, the jurors were brought in and returned a guilty verdict. On the record before us, Sanchez did not object or question whether the answer had been given to the jurors.

¶7 After the guilty verdict, Sanchez filed a timely motion for new trial pursuant to Rule 24.1, Ariz. R. Crim. P., arguing the jury had returned its verdict before receiving the trial court's answer to the jury question. The court denied the motion and later Sanchez was sentenced to the presumptive term of 2.25 years in prison. We have jurisdiction over Sanchez's appeal from the conviction and sentence.

Jurisdiction over the Denial of the Motion for New Trial

¶8 As an initial matter, Sanchez devotes much of his briefing to challenging the trial court's denial of his motion for new trial. Sanchez's notice of appeal, however, did not identify the order denying that motion. Although the state did not raise the issue, we have a continuing duty to examine our own jurisdiction. Musa v. Adrian , 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). While we have previously concluded that we lack jurisdiction under these circumstances, State v. Wilson , 253 Ariz. 191, n.3, 510 P.3d 528, n.3 (App. 2022), we requested supplemental briefing on the issue.

¶9 The parties agree that neither a separate notice of appeal—nor a specification of the denied motion for new trial in the notice of appeal of the judgment and sentence—is required to perfect an appeal of a denied motion for new trial. Contrary to the parties’ and our dissenting colleague's compelling arguments, we conclude we do not have jurisdiction over the denial of the motion for new trial.

¶10 The jurisdiction of this court "is prescribed by statute and we have no authority to entertain an appeal over which we do not have jurisdiction." State v. Nunn , 250 Ariz. 366, ¶ 4, 480 P.3d 109 (App. 2020) (quoting State v. Limon , 229 Ariz. 22, ¶ 3, 270 P.3d 849 (App. 2011) ). Because we are "a court of limited jurisdiction," we have "only [the] jurisdiction specifically given to [us] by statute." Campbell v. Arnold , 121 Ariz. 370, 371, 590 P.2d 909, 910 (1979) ; see also A.R.S. § 13--4031 (defendant "may appeal as prescribed by law and in the manner provided by the rules of criminal procedure"). "A notice of appeal from a judgment or order other than [a judgment of conviction and imposition of sentence] must be filed no later than 20 days after entry of" that order. Ariz. R. Crim. P. 31.2(a)(2)(B). And such a notice "must identify the order, judgment, or sentence that is being appealed." Ariz. R. Crim. P. 31.2(c)(1).

¶11 Sanchez's notice of appeal did not identify the order denying his motion for new trial and was filed more than twenty days after that ruling. Although the trial court granted Sanchez's request for a delayed appeal, neither his petition pursuant to Rule 32, Ariz. R. Crim. P., nor the court's order mentioned the denial. Sanchez argues, however, that his having identified the transcript of the hearing on the motion as part of the record on appeal was sufficient to raise a challenge to the denial of that motion, thereby bringing the matter into the exception set forth in Hanen v. Willis —a technical error. 102 Ariz. 6, 8-9, 423 P.2d 95, 97-98 (1967). We agree, as does the state, that "technical errors in a notice of appeal" are "nonjurisdictional defects that will not render it ineffective absent a showing of prejudice" to the appellee. State v. Smith , 171 Ariz. 501, 503, 831 P.2d 877, 879 (App. 1992).

¶12 We cannot agree, however, that a request for a transcript of the hearing is sufficient to satisfy the requirements of Rule 31.2. Rule 31.2 requires that the notice itself identify the subject of the appeal, and the notice before us does not indicate that Sanchez specifically intended to appeal from the denial of his motion for new trial. Contra Smith , 171 Ariz. at 503-04, 831 P.2d at 879-80 (technical error when notice listed "sentence" but included date of acceptance of plea and sentence). We cannot disregard the plain requirements of the rules and cannot infer from the notice something that is not actually stated or reasonably implied. See Baker v. Emmerson , 153 Ariz. 4, 8, 734 P.2d 101, 105 (App. 1986) (original notice of appeal from earlier judgment that failed to dispose of claim against party insufficient to appeal from amended judgment adding the party). Furthermore, designating a transcript in the record on appeal occurs separately from the notice of appeal and serves a significantly different purpose. Counsel may designate transcripts of a wide variety of non-presumptive proceedings for various reasons, many of which would have nothing to do with an appeal of a separate order. Moreover, the designation of record here could not effectively serve the function of a notice of appeal because, as such, it would have been untimely.

¶13 Beyond the questions of adequate notice and timeliness, both Sanchez and the state contend that we have jurisdiction because the trial court's order denying Sanchez's motion for new trial was interlocutory and not final or appealable until the entry of his conviction and sentence. This is incorrect.

¶14 Section 13-4033(A), A.R.S., gives this court jurisdiction in a criminal matter over an appeal "by the defendant only from" a "final judgment of conviction or verdict of guilty except insane," a "sentence on the grounds that it is illegal or excessive," and certain other orders, including one "denying a motion for a new trial." As noted above, Rule 31.2(a)(2)(B) requires a defendant to file a notice of appeal from an order other than a judgment of conviction or sentence within twenty days of that order. And Rule 31.2(h) specifically requires an amended notice of appeal if a trial court "enters an order granting or denying relief under Rule 24"—including relief sought under Rule 24.1 covering motions for new trial—after a notice of appeal has been filed. Rule 31.2(h) makes no distinction between or among the Rule 24 motions to which it relates. Thus, the statute and rule anticipate a ruling on a motion for new trial being treated as a separate, appealable order, which, correspondingly, must be...